Purdy v. Irwin

Headnote

Plaintiff has a deed of property from H. and P. Subsequently, N., execution creditor of H. and P., causes the Sheriff to levy on the property. Plaintiff files his bill to restrain the sale as casting cloud on his title. Court below found plaintiff’s deed to be in effect a mortgage: Held, that the bill must be dismissed; that the purchaser at the Sheriff’s sale would only acquire the interest of the judgment debtors, H. and P.; that plaintiff’s rights as mortgagee would be unaffected by the sale, and hence there is no necessity for equity .to interfere in his behalf.

Appeal from the Fourteenth District.

Bill in equity to restrain Irwin, Sheriff, from selling real property on execution in favor of defendant Nesbit and against H. H. Purdy and Green, on the grounds that plaintiff is the owner of the property levied on, and that a sale of it on execution would cloud the title. Plaintiff derives his title by deed from Green and Purdy, the defendants in execution. On filing the complaint, a temporary •injunction was ordered, staying the Sheriff’s sale pending the suit.

The Court found that this deed was a mortgage given to secure a debt of six hundred dollars due from Green and Purdy to plaintiff, and that the right of redemption existed in Green and Purdy at the time of the levy sought to be restrained, and made a decree as follows, to wit: “ It is ordered and adjudged that the prayer of said complaint bfe granted so far as to restrain and enjoin the sale of said water property under said execution of said defendant Nesbit, except as subject to the prior and equitable lien of Solomon Purdy thereupon for the sum of six hundred dollars principal, together with interest at the rate of ten per cent, per annum from the first day of April, 1857; and the costs of this suit will be awarded against the defendant.” Defendants appeal.